Herald picks up on Labour’s policy to make you prove consent if you have sex

The Labour Party’s plan to reform the criminal justice system would mean that the accused in a rape case would have to prove consent to be found innocent — a change it acknowledges as a monumental shift.

Every New Zealander needs to know about this insane policy of Labour;s.

The policy would mean that in a rape case, if the Crown proved a sexual encounter and the identity of the defendant, it would be rape unless the defendant could prove it was consensual.

This could lead to a huge increase in people videotaping their encounters, as it is the only way to prove consent.

Think about all the times you have had sex with someone, and how often could you *prove* consent. Bear in mind that even if you are married to them, that is not proof. If you split with your ex, then all they have to do is head to the cops and say the sex you had six weeks ago was not consensual. Now you then have to *prove* there was consent. Proof is not just casting doubt on the allegation – it is proof that you had consent. Now think about how could you prove you had consent. Doubt is not enough. If it is what you say vs what they say, you will lose.

I’m not sure there is a (western) country in the world that requires you to prove consent when it comes to allegations of sexual assault. There’s a reason for that.

“The Crown has to prove more than just sex; the issue of consent has to be raised by the Crown, they have to prove the identity of the offender. They would have to bear that burden of proof before a switch to the defence to prove consent,” Mr Little said.

Which is a barrier in stranger rape allegations. But no barrier to the large number of cases when the issue is consent, not identity.

He said the issue of proof would only apply where allegations of rape had been raised.

“It is pretty radical thing to say that ‘all sex is rape’ unless you prove consent. The reality is that in 99.9 per cent of cases, no one is being asked to prove consent.”

So reassuring. So long as there is no accusation.

Mr Little said the inquisitorial system still preserved those principles because the Crown would still have to prove a number of aspects of a case before consent was explored.

“I don’t accept that that is creating an offence under which the defendant is guilty until proven innocent.”

They are, once the fact of sex is established – they must then prove their innocence.

If you ever needed a reason to convince your friends and neighbours not to vote Labour, this is it. I predict Labour will be forced to abandon this policy, as more and more people become aware of it – but can you trust them not to implement it after the election regardless?

Comments (53)

ShawnLH

hj

Labour? What’s Labour (or Green for that matter)?
Dr Bryce Edwards discussing interview with David Cunliffe on the Nation (TV3).

“Absolutely, there is a wider disconnect between what he said and what the wider public think. Among the Labour Party and liberal left in NZ there are two ideologies that are really important to them and that’s this ideology of identity politics and rape culture. Political threat lists or identity politics is where what you are (man or women, gay your ethnicity) is more important than what you say and do. Rape culture holds that collectively there is this misogynist attitude amongst males that enables others to rape and commit crime.”

WineOh

Again National Radio interviewed Mr Little about this yesterday, they missed asking key questions. Little said there was plenty that the Crown would have to establish – the interviewer pointedly did NOT ask what it was they would have to establish.

Man ban? Tick.
Sorry for being a man? Tick
Criminalise sex? Tick.
3 More years in opposition? Tick!

hj

Yes we had sex and I let you but in a corner of my mind I was in doubt = rape. I haven’t taken too much notice but I wonder a bit about the Louise Nicholas case. In sex pleasure and discomfort can look similar.
At the end of the day even grown men can be silly boys.
James Bond was a bad role model.

fernglas

What hasn’t been picked up in this post, but was explored more fully in the Herald, was that this onus of proving consent would arise under an inquisitorial system rather than under the present adversarial system. So while the notion of requiring the defence to show consent is worrying enough as a unique change in principle under the present system, it is even more concerning that there is proposed to be a different system altogether for rape cases. That is where the debate should lie. Having seen the way the adversarial system works in sexual violence cases, I am in little doubt that it perpetrates a higher level of injustices to both complainants and accused than any other aspect of the criminal justice system. An inquisitorial system may well be the answer for the majority of sexual violence cases, which are not usually stranger rapes but where the parties are known to each other, and often related to each other. The adversarial system does not encourage any socially useful outcome in these types of cases. Stranger rapes, which is what most people think of when they hear the word rape, do not need any tinkering with the Crown’s obligation to prove all ingredients of the offence, including the absence of consent, under an adversarial system. This, however, seems to be what Labour is talking about. Instead of sound bite policies on important social issues, it would be nice to see some intelligent discourse. Fat chance n an election year.

dime

WineOh

Have been thinking on this today- in addition to breaking the presumption of innocence, it also removes the right to silence as well. With the presumption of guilt (after proving identify & sexual congress), if a defendant did not provide testimony or evidence of consent they will be found guilty of rape.

It also puts a huge amount of pressure on the police to determine consent – which ironically may result in a reduced number of prosecutions.

lilman

WHAT HAS HAPPENED TO THE LABOUR PARTY?

Seriously they once stood for jobs,for the worker,for the man who toiled to put food on the table and shelter over their families heads.
They fought for workers Smokos and where exploitation was apparent they battled for a better deal,it was about jobs and keeping their members in work.

Now what have we got.

A party that defines what we eat,how we live who we have sex,why we cant have standards.
Teachers are the new golden cows,can’t be touched.
Police are the enemey.
Farmers are scum.
Women are better,Men should be women.
Artists and TV personalities are fit to run the country with no business standing or experience.

So if this Labour policy is not the answer, what is an effective means of reducing the appalling level of sexual violence to which men subject women in this country? Reading the comments on this blog I suspect the answer will be a combination of denial and directing blame at the victims.

Nookin

Burden of proof is a concept that underlies the adversarial system. It has no real place in the inquisitorial system. The “inquisitor” rules what the issues are and decides what evidence to call. The “inquisitor” then seeks out that evidence and is part of the whole investigation. The Crown does not “prove” anything.

Changing the nature of the system will take years to design and even longer to implement. Throwing out the fundamental principle of the presumption of innocence is a bridge too far.

I don’t think Little has really thought about this. He certainly hasn’t taken any advice.

jp_1983

Grendel

Yoza, how about you ask the people who commit the offences? for the rest of us, we just keep on not raping people, seems to work fine. how do you intend to reduce your appalling level of sexual violence to women?

this proposed law change is freaking scary, i have seen too many scenarios of post sex regret = rape scenarios amongst people i know to think that anything except a very high burden of proof when its only consent that is at debate is needed. its very sad for those who were raped and cannot prove they did not consent, but if the alternatives are some rapists get away with it, vs some innocent people go to jail for rape, then sorry but some rapists will have to get away with it. it sucks, but the alternative is worse.

something also has to be done with false rape complaints, its seen as a weapon by some women, who know that even the stigma of a complaint can ruin you.

some situations i have seen.

1. two friends both just out of relationships get drunk at another friends place, and shag 6 times (!) during the night (ah to be 20 again). next morning, she feels bad about it (she later got back with the boyfriend she broke up with) and tried to claim rape, but was thankfully told she was wrong by the lady of the house who saw them both get it on (and heard it all night too).

2. crazy chick wakes up and decides that becuase in her dream her boyfriend raped her, then he did in real life. thankfully she backed down.

3. one of my staff at a bar is trying to remove a drunk aggro chick, she yells at him she will claim rape if he does not let her in. lots of witnesses.

4. and my favourite. lady i was dating, we had an awesome weekend together, she txts on the monday breaking it off, saying that i had raped her. two days of no sleep later for me (as i could not work out what i had done), she txts back “sorry, you did not rape me, i merged you with the guy stalking me and decide you were him” had she gone to the cops i had no defence other than she stayed for breakfast, it would have ruined me and my business.

labour are shameful with this pandering to the angry minority who think that consent is something you can turn off later on and that all men are rapists.

Chris2

And if Labour were to implement this you can be sure it would only apply to men.

Queen Victoria could not believe two women would have sex together so when homosexuality was made a crime she refused to include lesbian sex in that law; which is why women could have sex with each other without breaking the law, but a man could not have sex with other men without committing a crime.

Labour’s law will be bound to follow Queen Victoria’s example, and not include women having sex with women.

hj

Interesting that the Standard and Frogblog can’t handle an alternative point of view. They divide between pure/impure which (I suppose), corresponds to what Frank Salter called “The War on Human nature”. When you look at “anti-racism” (for example) you see a rationalization to a point where humans are essentially all of a sort pure essence: it is colonialism and capitalism that has tainted the otherwise pure peoples; it is the role of the liberal left priesthood to lead from the front and drag the unclean along. As someone pointed out “see what happens when the University Professor looses his car-park”?

hj

I knew a woman who was what you would call a trouble maker. She saw “he tried to get into me” as the crime. She made a complaint to the boss about a female who gave her a massage and then (according to her) made lesbian overtures. The silly management sent a letter of complaint to the (alleged) overturer and she quit in embarrassment (probably). Told a male the only reason she wasn’t married was because she was promiscuous. Had the hard word put on her and she said “I’m promiscuous but I’m not into promiscuity”. Had a leather and chain outfit in her wardrobe.
Another bombshell had psychiatric issues: men were always looking at her (which was true) but her reaction was pathological.

F E Smith

The “inquisitor” rules what the issues are and decides what evidence to call. The “inquisitor” then seeks out that evidence and is part of the whole investigation. The Crown does not “prove” anything.

Nookin, that is correct as far as the investigation goes when there is an investigating magistrate leading it, but does not apply to the trial itself. From memory, most inquisitiorial jurisdictions allow cross-examination by defence counsel. Indeed, most use a form of the jury trial for serious cases.

ben

The idea is outrageous and Labour will be rightly smacked around for it, but isn’t this the predicted backdown, late in that article:

“He clarified that Labour favoured the system, but its official policy is to have the Law Commission complete its report into inquisitorial systems, and then respond to that report.”

I struggle to believe there is a political equilibrium here – isn’t any party that promises to reverse the change and immediately pardon, or at least retry, all the people convicted under it going to capture far more votes than it loses from the feminists, with the possible exception of Labour. That said, the smacking rule stuck. So this idea from Labour is frightening.

I continue to be amazed there is still 29% of the electorate that would actually give their vote to the Labour party.

Paul Marsden

Fentex

Will the Greens risk a quarrel with their mates so close to the election?

Labour hasn’t embraced the Greens as mates, they hold them at arms length so as not to be tainted by association appears to be their idiotic thinking – as if the electorate doesn’t know they would have to work together if National is to be supplanted.

This is exactly the sort of thing that shows the folly of that attitude – not that it’s a good thing that would be defeated by opposition, it’s a dumb thing that should be defeated and the Greens have every incentive to jump on it. Especially if they conclude that the battle is lost.

If I were the Greens I would have concluded by now the election is essentially lost from the point of view of achieving influence through any support of Labour. As I’ve often said I would have made it clear I could work with National if suitable quid pro quo was available.

And now I would be feasting on Labours mistakes and missteps, such as this, with the explicit intention of calving votes from them. I would be all too pleased to contribute to the education of Labour about their failing responsibilities to represent opposition to National and strive to supplant them as the standard bearers.

Of course I’m not a Green, not a politician, and are often told it would be as if to herd cats. I suspect that is only so because no one has properly corralled them.

RRM

All of these threads about sex and consent and rape are attracting a lot of “Beautiful young Chinese women are looking for sad middle-aged Kiwi men to date” type dating site advertisements to the RH side bar of Kiwiblog… is anyone else noticing this? 🙂

seanmaitland

Heres my little anecdote:

Was married two years, and wife gets caught having an affair with workmate by mutual friend of ours. Wife stops coming home, two weeks later moves her stuff out while I was at work, and then tells her family and all mutual friends that I was beating her, locking her in the house, taking all her money and raping her. Putting all that stuff on me, took all the attention away from what she did.

Ended up losing lots of mutual friends (15-20) as a result of the whispering that went on behind my back, being threatened by several people to not show my face again at gatherings to save myself from being beaten up and then having to pay out 100k in a divorce settlement even though we were only married for two years and she was on minimum wage the whole time, so contributed absolutely nothing to the relationship. I even lost the friend who caught her having the affair.

This is all without this crazy change that Labour are proposing, and shows how horrific false claims can be. Under Labour I would’ve been ruined for life.

you reap what you sow

under this plan:
1. never marry an aussie women as they will shit on you faster than they can sit on your face and fart up your nose.
2. always get permission in triplicate before playing hide the sausage.
3. your right hand becomes your lover after your left is covered in blisters

I’m undecided on the issue of evidentiary burdens in sex cases. It’s obvious the current system is broken – it makes it almost impossible to secure convictions for a serious and widespread crime. Is this the answer? I dunno.

But if your reaction to proposed changes to the legal framework around rape trials is one of horrified panic, because you think all the people you have sex with will now accuse you of rape, and that, pace DPF, you need to start filming all of your sexual encounters to escape conviction for the inevitable subsequent police charges, you’re making some pretty basic mistakes around sex and relationships that aren’t gonna get fixed by not voting for Labour.

Also worth pointing out to the Wise Men of the Kiwiblog Comments Section who complain that crazy woman are constantly accusing them of rape – and are thus opposed to any law changes that might help secure convictions – being accused of rape isn’t a normal thing. It only happens to a tiny, tiny minority of men, an awful lot of whom are actual rapists, so if this is something that’s happening to you on a consistent basis, it’s probably not because of feminism or political correctness gone mad, but actually because you should probably be in prison, and a law change to help accomplish this wouldn’t be a bad thing.

Johnboy

I am sure there were many false claims of rape when ACC was paying about $25k without prove.

Some people will kill for money but fortunately they are a very small minority. I bet there would be more than a few women who would claim marital rape if they stood to gain big money and were guaranteed no arguments over custody.

It it clear that this is definitely Labour Party policy or are they just flying a kite?